Pushing against an ajar door – Ukraine and the Rome Statute

February 14, 2013

Amongst the 100,000 or so readers this blog gets each year, there are readers of many backgrounds and of many varied interests. They range from those chasing the fantasies purported by marriage agencies, those considering retiring to Ukraine, those seeking business opportunities here etc, to the other end of the spectrum of diplomats, politicians, civil society and academics engaged in, or with a serious professional interest in, Ukraine.

Outside of this blog, I have indeed contributed to several research papers, academic essays, books et al., for those who have asked for my input in relation to Ukraine. In recent years many such requests have been a direct consequence of my ruminations appearing on search engines and grabbing the would-be author’s attention.

Thus I try to refrain from writing in “Academese” and losing one part of the readership, whilst also keeping the blog fairly well written and giving the impression to those more academically qualified that I am not a complete dullard. Occasionally I fail both camps – but this is free and something I do as a hobby for 20 minutes a day. Professional and high quality work is something you pay for – and nobody pays me.

Anyway, a few days ago I received an email from Kirsten Meersschaert Duchens, the Regional Coordinator for Europe for the international organisation Coalition for the International Criminal Court. Kristen, it appears, has been a follower of the blog for about a year.

In short, an attempt to rally the politicians, civil society, academia and media in Ukraine will occur in the near future to try and provide momentum in Ukraine to become a ratified signatory to the Rome Statute.

To save you a long read, in a very brief nutshell, the Rome Statute created the International Criminal Court to deal with the most abhorrent large scale crimes humanity inflicts upon itself. Namely the crimes of genocide, crimes against humanity, war crimes and the crimes of aggression – I will return to “crimes of aggression”!

So what’s the problem for Ukraine here? It has not engaged in war crimes, crimes against humanity or genocide and neither has it committed any crimes of aggression since the ICC was founded – and the ICC has no jurisdiction over acts committed prior to its creation as per the Rome Statute.

Despite all its faults, Ukraine has, and still does, take its commitments to the UN very seriously – as you would expect from a founding member state – and the UN occasionally refers cases to the International Criminal Court.

Well, the problem is that the Ukrainian door is only ajar as far as the ICC is concerned and cannot be fully opened under the current circumstances.

On 20th January 2000, Ukraine signed the Rome Statute and on 27th January 2007 it acceded to an agreement on the privileges and immunities of the ICC – however it has never ratified its signing of the Rome Statute in 2000 – prevented in doing so by a Ukrainian Constitutional Court ruling on 12th July 2001, that stated amendments to the Ukrainian Constitution would be required to do so.

The constitutional “issue” being the provision stating that “an International Criminal Court is complementary to national criminal jurisdictions” (paragraph 10 of the Preamble and Article 1 of the Rome Statute) as eloquently made clear here by Viktor Kryzhanivskyi on 2006, the then Ukrainian Charge D’Affaires to the UN.

That being the only issue within the Rome Statute preventing Ukrainian ratification (despite mention of the loosely worded “crimes of aggression” court competence – a competence which is likely to be in part responsible for US, Chinese and Russian non-ratification. – As an aside a very interesting recent commentary on the US love/hate relationship with the ICC here).

Those few words in the Rome Statute preamble have, and currently still are, preventing Ukraine ratifying a statute it otherwise agrees with and supports – After all, when you are never likely to fall foul of this statute as a nation or national leader, supporting an international court that prosecutes those who do, is not a particularly difficult position to adopt.

Thus Ukraine remains a supporter of the ICC and continues to state it will – eventually – ratify the Rome Statute.

The Ukrainian difficulty is that it is not particularly easy to change the Constitution of Ukraine – necessarily so given past and current self-interests of Ukrainian leaderships I would add – although it would be a simple matter to change the wording of the constitution to allow ratification of the Rome Statute.

And so, what of the Arseniy Yatseniuk suggested and President Yanukovych initiated, Constitutional Assembly created in May 2012, headed by ex-President Kravchuk and Yuri Shemshuchenko?

Well, what indeed? Who of the supposed 94 academics (not withstanding political party representatives) do you lobby to insure that any changes to the Ukrainian Constitution, if they ever come, will allow for Ukraine to eventually ratify a statute it signed up to 13 years ago (and counting)? How many on this select panel are outward looking rather than simply looking domestically when working on this document?

How long before the multitude of changes required in the Ukrainian Constitution even leave this academic/political bubble and reach the stage where what is likely to be a long list of recommendations can be debated in the RADA and subsequently actioned?

Which Ukrainian NGOs, academics and civil society personalities will get on board with an issue that has very little effect on the Ukrainian citizen, and if they do how will they reach them from their own exclusive bubble all to often divorced from Ukrainian society?

Which media partners will champion such a cause when there are so many domestic problems in Ukraine – particularly when there is no speedy solution via the Constitutional Assembly in sight and long term issues generally do not sell news.

Food for thought when it comes to who, what, where and when.

Certainly 2013 is a year for impact as far as Ukrainian politicians and diplomats go on the international stage due to the OSCE chair Ukraine currently holds. It would be remiss not to push the Rome Statute issue during this time – particularly as genocide, war crimes, crimes of aggression and crimes against humanity can all be cast as “security issues” and thus fall under the OSCE remit.

A nation as the current OSCE chair and founding UN member state that won’t/can’t ratify an international statute for a court dealing with such abhorrent crimes – despite the fact it has never been accused of, and is never likely to commit such crimes (and thus no self-interest to protect)? Not the kind of issue you want raising loudly and publicly necessarily.

Cynically, a nation with a reputation of having such a politically controlled and malleable judicial and legal system that is always being cast in a nefarious light, you have to ask why, for once, Ukraine cannot “facilitate” another look at the 2001 Constitution Court ruling and emerge with a “different interpretation” and outcome for the greater good – an outcome that would be welcomed by the vast majority of its neighbours?

Maybe the place to start lobbying is the Presidential Administration? An easy international human rights political win, would seem well within reach should a decision to “revisit” the 2001 Constitution Court decision on the Rome Statute be forthcoming, thus removing the need for any change to the constitution at all in this instance.

Whatever the case, I will lend my wholehearted support to Kirsten Meersschaert Duchens and the Coalition for the International Criminal Court in its efforts to get Ukraine to ratify the Rome Statute.